The relationship between judicial
review of NCAs decisions and
private antitrust enforcement
Nuno Albuquerque Matos
Genoa, 20th November 2015
PUBLIC AND PRIVATE ENFORMENT OF
COMPETITION LAW
Principle of complementarity in
enforcement of EU competition law
public
and
private
System of parallel competences between administrative bodies
and judiciary (BRT v Sabam; Delimitis)
NATIONAL COURTS AND PRIVATE
ENFORCEMENT: THE ROLE PLAYED
Principle of direct effect (Bosh v De Geus) of rules directed at
private parties (article 101 and 102 TFEU)
Stand-alone actions for damages: private enforcement tout
court
Broadly independent from NCA or judicial review decisions
Courts are able to develop their own legal reasoning, within
certain limitations
NATIONAL COURTS AND PRIVATE
ENFORCEMENT: THE LIMITATIONS
Exception to parallel competence
Duty of abstention: Courts cannot take decisions running counter to
a decision adopted or contemplated by the Commission (Delimitis)
Conflict resolution rule: should that happen, Commission’s decision
prevails (Masterfoods)
Article 16 of Regulation 1/2003
Principle of prevalence of EU Law and institutions over
national law and institutions
JUDICIAL REVIEW OF NCA DECISIONS
Review court(s) as part of the public enforcement pillar
Level of scrutiny: matters of fact and law as an important feature
some MS judicial review is limited to matters of law, which raised opposition
to the binding effect of NCA before Directive 2014/104/EU was adopted
diverse national frameworks
Power of review courts over NCA infringement decisions
diverse national frameworks
generally quash decisions or at least decrease or maintain the amount of fine
JUDICIAL REVIEW OF NCA DECISIONS
Portugal
misdemeanour procedures imposing fines or others sanctions are
subject to appeal to the first instance court (Competition, Regulation
and Supervision Court) and to the Appeals Court, the former assessing
matters of fact and law
possibility of increase or decrease the amount of fines and periodic
penalty payments
administrative procedures appeallable to the Supreme Court of Justice
ADMINISTRATIVISATION OF PRIVATE
ENFORCEMENT?
Article 9 (1)
iuris et de iure presumption: final decisions taken by NCAs or by a review
court regarding an infringement of competition law shall be deemed
irrefutably established on national courts regarding actions for damages
only infringement decisions (v.g. non-infringement and closing cases with
conditions are not binding)
Scope of presumption: material, personal, temporal and territorial limitation
Article 9 (2)
final decisions taken by the NCAs or a review court shall be considered as
primae facie evidence on other MS courts regarding actions for damages:
minimum harmonization
forum shopping?
JUDICIARY’S INDEPENDENCE PRINCIPLE
UNDERMINED?
On what grounds is the Masterfoods judgement extended to
the national (and horizontal) level?
principle of prevalence of EU law is of vertical nature not horizontal
Binding nature of a judicial review decision
brings the EU system more in line with the US system
mitigates the risk of decisions taken by administrative bodies being
imposed on national courts dealing with actions for damages
JUDICIARY’S INDEPENDENCE PRINCIPLE
UNDERMINED?
NCA decisions not appealed
become final decisions
binding on national courts in the context of follow-on damages
actions
is this in line with the principle of independence of the judiciary?
Article 9(3) as the national court’s way out
preliminary ruling to the CJEU is safeguarded
BINDING EFFECT OF NCA DECISIONS AND
HUMAN RIGHTS
Binding effect of NCA infringement decisions may prevent a right to a fair
trial by the defendant in an action for damages
At the EU level
Articles 6 (1) ECHR and 47 of EU Charter Fundamental Rights
General Court in Enso Española (1998) found that public enforcement by
Commission does give rise to a fair trial due to action for annulment before the
GC and appeal to the CJEU
At the national level
ECtHR: in Menarini it indicated that (i) judicial review must reach beyond the
control of logical coherence of administrative decision (or legality control), (ii)
have power to quash NCA decisions in questions of fact and law and (iii) most
importantly, assess how courts exercise that power in practise
Most MS use “monist” systems: investigations and decisions entrusted to single
administrative authorities
Level of judicial scrutiny varies significantly among MS
WEIGHING THE OUTCOME
Advantages
binding judicially reviewed decisions increases effectiveness of followon action for damages while safeguarding the principle of judicial
independence
procedural efficiency
increased awareness of antitrust damages actions with incentives to
bring follow-on actions
preliminary ruling reference is always possible within an action for
damages procedure
WEIGHING THE OUTCOME
Disadvantages
limitation of judges´ margin of discretion in the evaluation of facts,
evidence and law in follow-on actions based on not reviewed
administrative body decision
widespread use of stand-alone actions may still entail inconsistent
application of articles 101 and 102 TFEU
enhancement of legal uncertainty
possible overcomplaining phenomenon with the NCAs
CONCLUDING REMARKS
Judicial review of NCAs decisions
with smaller impact on private enforcement than expected due to
scope limitations established by the Directive
contributes to mitigate the risk of administrativisation of private
enforcement before national courts
Net gain of irrebuttable presumption is not granted, if taken
into account the possibility of:
undermining the principle of independence of judges
excess of private parties reliance on NCAs through the file of
complaints
lack of effectiveness of enforcement of NCAs decisions in other MS
forum shopping
Thank you!
Nuno Albuquerque Matos
[email protected]